Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 635 (GUJ)

NARESH C. SHAH GAS v. STATE OF GUJARAT

2013-10-17

JAYANT PATEL

body2013
JUDGMENT : 1. As in both the matters, common and inter connected facts and points are involved, they are being considered simultaneously. 2. The short facts of the case are that on 30.4.2008, when the petitioner was holding the post of Secretary, Gujarat Sangeeta Natak Academy, he received communication dated 30.4.2008 from the office of respondent No.2, whereby adverse entries in his Confidential Reports (hereinafter referred to as ‘CR’ for the sake of convenience) were made for the period from 3.11.2006 to 31.3.2007 and from 1.4.2007 to 31.3.2008. The petitioner submitted representation on 8.7.2008 against retention of both the adverse entries. In response to the representation made by the petitioner on 15.10.2008, comments were called for and submitted by the Reporting Officer. Thereafter, the comments were also called for from the Reviewing Officer, which were received by theletter dated 7.1.2009. Ultimately, vide decision dated 27.2.2009, the petitioner was communicated that both the adverse remarks in the CRs are retained. It is under these circumstances, for the CR of the period from 3.11.2006 to 31.3.2007, Special Civil Application No.8586 of 2009 has been preferred and for the CR of the period from 1.4.2007 to 31.3.2008, Special Civil Application No.8585 of 2009 has been preferred. The prayers made in the petitions by the petitioner are that the decision for retention of the adverse entries in CR be quashed and set aside and also the adverse entries in the CR be also quashed and set aside for the respective periods. 3. I have heard Mr. Nikhil Kariel, learned Counsel for the petitioner in both the petitions and Mr. Jayswal, learned AGP with Mr. Hardik Soni, learned AGP for the respondents. 4. As such, in order to examine the legality and validity of CRs, it would be necessary to bifurcate the facts period-wise and thereafter to consider as to whether there was any material for making remarks in the CR or not. In the petition, it would be appropriate to refer to first CR, which would be for the period from 3.11.2006 to 31.3.2007 and the second CR would be for the period from 1.4.2007 to 31.3.2008. As the evidence and the record are more or less common in both the matters, it would be appropriate to refer to the documents in the first matter, though it relates to second CR being SCA No.8585 of 2009. 5. As the evidence and the record are more or less common in both the matters, it would be appropriate to refer to the documents in the first matter, though it relates to second CR being SCA No.8585 of 2009. 5. It appears that the Reporting Officer in the first CR rated the petitioner as “Good” on his overall assessment and in the second CR also, he was rated as “Good” on his overall assessment. However, the Reviewing Officer has made the adverse entries and the basis appears to be the letter dated 5.4.2007 addressed by the Reviewing Officer, to the Chief Secretary, GAD, pertaining to the conduct and behaviour of the petitioner. The copy of the said letter is produced by the petitioner at Annexure-C. The said letter shows that representations and complaints were made before the Reviewing Officer for the attitude and conduct of the petitioner towards artists. On account of the said complaint and representations, the meeting was arranged by the Reviewing Officer on 28.3.2007 on the occasion of World Theatre and such meeting was held in presence of the Commissioner, Youth Services and Cultural Activities. As found by the Reviewing Officer, there were three types of complaints against the petitioner; that the petitioner was insisting for submitting details of accounts at every stage as and when the disbursement was to be made, though as per Government Resolution, such details were to be submitted at the time of disbursement of last instalment of 20%. The second was that the artists were being treated without any due respect by the petitioner and more particularly the women artists. The third was that the petitioner insisted for submission of the copies of the bank pass-book, to which the Government was not concerned and it resulted into invasion of privacy of the artist or the person concerned. The Reviewing Officer had also found that the attitude of the petitioner was rude and the Reviewing Officer had conveyed to him to keep restrained in dealing with the artists. The Reviewing Officer in the said letter had stated that the counseling for such purpose was conveyed to the petitioner, but there was no much improvement. It appears that on the basis of the aforesaid complaints received and the further observance by the Reviewing Officer, the aforesaid entries in CR were made by the Reviewing Officer. 6. The Reviewing Officer in the said letter had stated that the counseling for such purpose was conveyed to the petitioner, but there was no much improvement. It appears that on the basis of the aforesaid complaints received and the further observance by the Reviewing Officer, the aforesaid entries in CR were made by the Reviewing Officer. 6. As per the material produced on record, on account of the aforesaid letter dated 05.04.2007, vide letter dated 15.05.2007, General Administration Department (GAD) of the State Government directed for holding inquiry so as to find out as to what extent the petitioner can be made responsible for the delay caused for payment of the amount and other alleged irregularities. Further, it appears that on account of the instructions issued by the General Administration Department of State Government vide order dated 15.05.2007 for holding of inquiry, a caution was issued dated 04.06.2007 (Annexure-E) to the petitioner by the State Government through the Department of Sports, Youth and Cultural Activities informing the petitioner that there should be improvement in future. 7. It also appears that thereafter, the inquiry was concluded and as per the inquiry report dated 30.09.2009 of the Deputy Secretary of the Department of Sports, Youth and Cultural Activities, the petitioner was exonerated so far as the delay caused in making payment and as per the said report, it was found that the petitioner had taken strict approach for implementation of the condition imposed for compliance and such was not found favour with certain elements and as a result thereof, the atmosphere of complaint was made. It appears that the aforesaid material has also been considered by the State Government and both the adverse remarks in the CR are maintained. 8. If the aforesaid facts are bifurcated into two parts, for the first CR and second CR, it appears that the adverse entry in the CR for the period from 03.11.2006 to 31.03.2007, could not be said as without their being any material on record by the reviewing officer. 8. If the aforesaid facts are bifurcated into two parts, for the first CR and second CR, it appears that the adverse entry in the CR for the period from 03.11.2006 to 31.03.2007, could not be said as without their being any material on record by the reviewing officer. It is hardly required to be stated that in a matter of adverse entry in the CR, this Court would neither sit in appeal over the decision of the reviewing officer nor would examine the sufficiency of the material since it is ultimately for the reviewing officer to assess the performance of the officer keeping in view the conduct to be observed by the officer concerned for the respective period. Further, at the most, the aspect of procedure followed in decision making process by the State Government in maintaining adverse CR may be considered but such will be to the extent of observance of principles of natural justice and cannot be as that of appellate or revisional power of the Court. In my view, when the reviewing officer had noticed certain conduct and based on that, if the remarks are made in CR, such could not be said to be unwarranted or arbitrary. 9. The attempt made by the learned counsel appearing for the appellant to contend that the reviewing officer wanted one Mr.Verma to be inducted in the post of the petitioner in my view is misconceived inasmuch as by no stretch of imagination, the interpretation of the letter dated 05.04.2007 could be made for posting of Mr.Verma vice the petitioner as sought to be canvassed. The reviewing officer in the said letter, has stated that earlier when Mr.Verma was holding the post, the performance was good and his services can be spared, but simultaneously, he has also stated that if another officer is to be posted vice the petitioner until suitable officer is posted, it would be better to keep the post vacant. Such cannot be termed as any malafide intention on the part of the reviewing officer as sought to be canvassed. 10. Such cannot be termed as any malafide intention on the part of the reviewing officer as sought to be canvassed. 10. Mr.Kariel, learned counsel appearing for the petitioner additionally submitted that as per the Government Resolution, even if the inquiry is held and the disciplinary authority at the conclusion of the inquiry finds that it is a case for imposition of no punishment and only warning, such would not be reflected in the CR of the officer concerned and therefore, when it was only at the stage of reviewing officer coupled with the aspect that in the subsequent inquiry, the petitioner is exonerated, it would not call for maintaining of such adverse entry in the CR and therefore, it was submitted that maintenance of first adverse entry in CR is concerned, the same deserves to be quashed and set aside. 11. It is not possible to accept the contention for two reasons, one is that holding of inquiry and giving warning cannot be equated with the assessment of the performance while writing CR by the reviewing officer. Further, the contents of the letter dated 05.04.2007 of the reviewing officer shows that before him, the complaints were made and the reviewing officer had found substance in the complaint pertaining to certain behaviour and conduct of the petitioner and therefore, on the basis of the said material if he has made entries in the CR, such could not be said as without any basis whatsoever. As observed earlier, this Court would not undertake the judicial scrutiny on the aspect of sufficiency of the material. At the same time, it cannot be said that the reviewing officer made the entry just on any hypothesis or surmises or without their being any basis. So far as the State Government is concerned, while taking decision to maintain first entry, all materials have been considered including the representation made by the petitioner and the remarks of the reviewing officer and therefore, no fault can be found in the decision making process of the State Government for maintaining the adverse first CR. So far as the State Government is concerned, while taking decision to maintain first entry, all materials have been considered including the representation made by the petitioner and the remarks of the reviewing officer and therefore, no fault can be found in the decision making process of the State Government for maintaining the adverse first CR. 12 But the aforesaid evidence in any case was pertaining to the conduct of the petitioner for first CR and not for second CR which was for the period from 01.04.2007 to 31.03.2008, save and except the caution issued by the State Government through the Department of Sports, Youth and Cultural Activities which is dated 04.06.2007. However, the pertinent aspect is that such caution was on the basis of the communication dated 15.05.2007 issued by the GAD for holding of the inquiry. Further, as recorded above, the communication dated 15.05.2007 of the GAD for holding inquiry was on the basis of the letter dated 05.04.2007 addressed by the reviewing officer pertaining to the conduct of the petitioner. The said conduct as observed in the letter dated 05.04.2007 by the reviewing officer was pertaining to the period prior to 31.03.2007. 13 Under these circumstances, the caution dated 04.06.2007, if is on the basis of the conduct of the petitioner for the period prior to 31.03.2007, could not be considered as a valid basis or material for recording adverse entry in the second CR which pertains to the period from 01.04.2007 to 31.03.2007. Apart from the above, if the caution is relating to the conduct of the petitioner prior to 01.04.2007, even if such caution is to be considered as one of the relevant aspect, there has to be some material on record about the repetition of the same conduct by the petitioner or in any case, any material to show that there was no improvement by the petitioner. Such second adverse remark could be maintained even if there is any other fresh material. But on the contrary, there is no fresh material. The learned AGP has also not been able to show any material which would show the conduct of the petitioner after 01.04.2007. Such second adverse remark could be maintained even if there is any other fresh material. But on the contrary, there is no fresh material. The learned AGP has also not been able to show any material which would show the conduct of the petitioner after 01.04.2007. 14 The learned AGP attempted to rely upon the averments made at para 5.8 of the affidavit-in- reply dated 31.03.2010 filed by Shri Harsh Brahmbhatt, Joint Secretary of the GAD, but he could not dispute the aspect that the date mentioned for personal hearing by the reviewing officer to the complainant of 28.07.2007 is a typographical error and the correct date would be 28.03.2007 for which reference is already made in the letter dated 05.04.2007 by the reviewing officer addressed to the Chief Secretary of GAD of the State Government. 15. Under these circumstances, if there is no material whatsoever about the conduct of the petitioner continued after 01.04.2007, it could be said that the marking of more or less the same adverse remarks by the reviewing officer for the year of 2007-2008 was without any basis. Unfortunately, at the State Government level, since the representations were common and the facts were also conjoint, the same was not bifurcated qua each adverse remarks for the respective period and resultantly, the decision making process for maintenance of second adverse remark has been vitiated. 16 In my view, if there was no material about continuation of the conduct by the petitioner after caution was issued to him, in absence of any such material, the very adverse remarks could be said as without their being any material. Hence, cannot be maintained. 17. In view of the aforesaid observations and discussions, the petition fails for quashing of the adverse remarks for the period from 03.11.2006 to 31.03.2007 and hence, SCA No.8586/09 deserves to be dismissed. Therefore, dismissed. However, the adverse remarks for the period from 01.04.2007 to 31.03.2007, cannot maintained in the eye of law. Hence, the same is quashed and set aside and it is directed that such adverse remarks shall stand expunged from the CR of the petitioner. 18 It has been stated on behalf of the petitioner that thereafter, the petitioner has been compulsorily retired because of the adverse remarks in the CR of the petitioner and such action of compulsory retirement is challenged by filing separate petition. 18 It has been stated on behalf of the petitioner that thereafter, the petitioner has been compulsorily retired because of the adverse remarks in the CR of the petitioner and such action of compulsory retirement is challenged by filing separate petition. 19 Hence, the observation deserves to be made in the present judgment that the rights and contentions of both the sides for the challenge to the decision of compulsory retirement in a separate petition shall not be prejudiced in any manner whatsoever by the present judgment. 20. Both the petitions are disposed of accordingly. Considering the facts and circumstances, no order as to costs. Rule discharged in SCA No.8586/09 and Rule made absolute in SCA No.8585/09.